Thursday, July 14, 2011

American Bar Association (ABA) Releases Draft of Its National Standards for Language Access to State Courts

Several of my previous postings address the effort made by groups and individuals to overcome barrier languages in court proceeding involving Limited English Proficient (LEP) persons.  These efforts include the Court Interpreters Act of 1978, chief justice and American Bar resolutions, and executive orders (see February 4 posting). Despite all these efforts resistance to enforce such orders and resolutions still persists. The report on the study of Language Access in State Courts published by the Brennan Center for Justice in 2009 bears witness to the disparities in language access that exist in the thirty-five states included in the study.  The report reveals that many jurisdictions and state courts lack systems to implement and manage adequate and coherent language access services.
The American Bar Association has recently released the Standards for Language Access in US Courts, [Note: the text of the Standards is no longer available on ABA's web site, instead a description of the Language Access Standards project can be found. December 2011] which were developed through funds awarded by the ABA Standing Committee on Legal Aid and Indigent Defendants (SCLAID). The development of national standards for language access in US courts represents an additional step towards the goal of overcoming language barriers in court proceedings. The standards’ aim is to provide guidelines for courts and state court administrators across the United States in the design, implementation, and enforcement of a comprehensive system of language access services that suits the needs of their community. They were developed under the auspices of the ABA’s Standing Committee on Legal Aid and Indigent Defendants (SCLAID).  The Honorable Vanessa Ruiz, District of Columbia Court of Appeals, served as head of the project's steering committee and an advisory board, which was supported by and advisory board made up of a wide array of professionals, including court administrators, language access experts, state bar leaders and judges, practicing interpreters and translators, and advocates.

There are 10 ABA standards.  Standard one highlights fairness and access to justice as the fundamental principles that underlie the US judicial system. Standards two through ten relate to the way fairness and access can be achieved in cases involving Limited English Proficient persons.
Standard two, which refers to ‘meaningful access to justice’, clearly indicates that this access applies to ALL court proceedings and involves promulgating, or supporting the promulgation of, rules that are enforceable in proceedings and binding upon staff to implement these Standards.  Standard three refers to the need to identifying English Limited Proficiency (LEP) persons who might need language access services when dealing with the US courts. Standard four provides that competent interpreter services should be provided throughout all legal proceedings to persons with limited English proficiency. Despite the use of the adjective all, which should suffice, this standards includes the following list: proceedings conducted within a court; court proceedings; and proceedings handled by judges, magistrates, masters, commissioners, hearing officers, arbitrators, mediators, and other decision makers.  It also includes persons with limited English proficiency who are in court as litigants, witnesses, persons with legal decision-making authority, and persons with a significant interest in the matter. Standard five indicates clearly that language access services are not meant to be only for court proceedings but also all court services with public contact, including court-managed offices, operations, and programs.  It refers to technology through which these services may be provided.
Standard six specifies that courts should ensure that LEP persons have access to court-mandated services, court-offered alternative services and programs, and court-appointed professionals, to the same extent as persons who are proficient in English. This standard provides for an equal footing for all persons dealing with the US judicial system.  With standard seven, the need for translating documents is directly addressed for the first time, and standard eight refers to the need for training in translation.  Translation of legal and court-related documents is more often than not performed by interpreters who, except in rare cases, lack training in translation.  Translator training is an issue that needs to be addressed sooner rather than later.  Standard eight addresses the need to ensure that language access providers are competent, and this includes translators.  Standard nine calls for all court officers and officers of the court (staff or contractors) to receive training on legal requirements for language access, court policies and rules, language services provider qualifications, ethics, effective techniques for working with language services providers, appropriate use of translated materials, and cultural competency. All these efforts should be coordinated throughout each individual state, which is what standard ten addresses.
It is worth noting the standards are dated August 2011. This is the date when they will be will be submitted to the American Bar Association House of Delegates for approval. Therefore, they are not yet to be considered ABA policy.  It is also worth noting that these standards is not a piece of legislation and will not have binding force even after approval by ABA. Decision makers at the state level may or may not follow them. However, the fact that these standards stem from the American Bar Association will be a persuasive element for legislators and decision-makers in the state courts to adopt them.
Another way to get legislators and decisions-makers to allocate resources for language access in state courts is through a complaint to the Department of Justice for compliance with Title VI of the Civil Rights Act of 1964, and the nondiscrimination provisions of the Omnibus Crime Control and Safe Streets Act of 1968.

The news article in the section Interpretation in the News of this blog offers an example of this in Colorado.  The problem with this approach is that nobody wants to be the one to do it, as itis likely to create tension and ill-will.
As I have stated in previous postings, there have been significant changes in the field of interpretation since I first came to the United States.   As an educator concerned about issues of competence, I welcome initiatives that further the development of translation and interpretation in this country. 
Finally, I would encourage readers to listen to the May 26, 2011 recording of the Open Forum on Draft Standards.  This forum provides an explanation on each of the ten standards as well as such interesting details as the decision to use the modal verb “should” instead of “shall."

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